Wills and Estates

Estate planning is a subject that we don’t like to think about but in its simplest form is just about providing peace of mind. It is also about making sure that the investments you make now are passed on to your family or beneficiaries in the most effective way.

Your CLO Estate Planning Lawyer will give appropriate advice in simple plain language, and with a focus on respecting your wishes and ensuring a timely finalisation of your estate.

What is a Will

A will is a legal document, which as far as possible, ensures your assets are distributed according to your wishes after you die.

Your will can cover all assets in your own name such as your house, land, car, shares and bank accounts. It does not cover life insurance or superannuation unless they are paid to the estate.

In your will you appoint an executor to distribute your assets to the beneficiaries (those you choose to receive your assets). Your choice of an executor should be carefully considered as the role can be very demanding and often complex, requiring legal and financial knowledge or guidance.

Any person of sound mind from the age of 18 years, or, in certain circumstances under 18 can make a will.

What Happens If I Don't Make a Will?

Dying without a will (called ‘intestacy’) means your assets will be distributed according to a rigid formulae set down by the laws of intestacy.

Those laws may:
  • Result in your spouse/de facto partner having to share ownership of the family home with your children
  • Force the sale of the family home or family car so that the debts can be satisfied and allow other beneficiaries to claim their share of your assets
  • Not provide future financial protection for your children and grandchildren
  • Give your assets to the government, if you have no relatives or any other persons who are entitled to benefit
Furthermore, you lose your autonomy as to who will administer your estate.

Preparing Your Will?

A will is a complex legal document that should be prepared by a solicitor.
Before visiting your solicitor, you should consider:
  • Who to appoint as the executor and their powers
  • Who to appoint as the guardian of your children, and how you would like to provide for your children’s future
  • What your current assets and liabilities are
  • Who should receive your assets
  • Your life insurance
  • Your preferred funeral arrangements
  • Your superannuation

What is a Testamentary Trust Will?

It is often said “the first generation builds the business, the second makes it a success, and the third wrecks it”.

There are many reasons why an inheritance can simply vanish apart from being squandered by a wasteful heir; split by divorce, surrendered to pay creditors or legal costs, or siphoned off by the taxman.

Fortunately there is a way to ensure your Estate will provide for your loved ones when you are gone. That is a testamentary trust.

A testamentary trust can provide a number of benefits to you and your intended beneficiaries including tax planning opportunities and asset protection.

Under a testamentary trust, $20,000 can be distributed each year to children or grandchildren under 18 years of age tax free. Under a standard family trust (outside a will) you can only distribute $416 per year. Anything above that will incur penalty tax rates.

A testamentary trust may also protect your assets in the following circumstances:
  • If your beneficiaries are exposed to risk of bankruptcy (eg if they are business owners or involved in professions subject to risk, such as doctors)
  • If your beneficiaries experience relationship breakdown
  • If you have a child with a gambling or drug addiction, or they are simply spendthrifts
  • If you have a disabled child

A testamentary trust is any trust created by a will. Usually, testamentary trusts are discretionary trusts, that is, one that allows the trustee to decide how the assets should be divided among the beneficiaries.

The terms of the testamentary trust are contained in the will. In effect, these can enable you as will-maker, or testator, to rule from the grave.

CLO Lawyers will guide you through the process to ensure that your wishes are properly reflected in your documentation.

Can I Prepare My Own Will?

You can prepare your own will but you do so at the risk of causing costly and emotional legal battles among relatives should a dispute arise after you die.

When preparing a will, a number of legal requirements must be followed or it may be ineffective. If this occurs, and no valid earlier will exists, you may be presumed to have died intestate with the laws of intestacy to apply unless the invalidity is rectified by court process. This can be very expensive.

Alternatively, if your handmade will fails to express your wishes clearly, the court may need to interpret the will which may add further costs and emotional burden onto your loved ones.

Enduring Power of Attorney

Under an enduring power of attorney (EPA) you may give your attorney the power to deal with all or any part of your financial, personal and health matters. An EPA for financial matters can come into effect immediately if you lose capacity, or on a specific date, or at a specific event. There are a number of other considerations regarding this decision, and it is advisable to seek legal advice to ensure your choice is fully informed.

If your attorney under an EPA acts in conflict of their duties and your interests (eg in financial relationships), they would enter a ‘conflict transaction’ that they can only do if you authorise such a transaction. It is best to discuss this with us. CLO Lawyers will provide appropriate advice in simple plain language.

Revoking an Enduring Power of Attorney

Your EPA is automatically revoked:
  • On your death
  • When you marry, unless your new spouse is your existing attorney
  • When you divorce, if your attorney was your spouse
  • When you appoint a new attorney
  • If your attorney dies or loses decision-making capacity
  • If your attorney becomes unqualified, for example, bankrupt or a paid health care provider
You can choose to revoke your EPA at any time providing you are capable of understanding what you are doing. Your solicitor can advise you on the procedures to follow.

Advance Health Directive

An advance health directive (AHD) - sometimes called a living will - is a formal way to give instructions about your future health care. It comes into effect only if you lose capacity to make decisions.

You can make an advance health directive if you’re over 18 and have the capacity to do so.

An advance health directive:
  • Outlines what medical treatment or health care you want if you can no longer make decisions for yourself. It can be general (e.g. that you wish to receive all available treatment) or specific (e.g. that you wish to decline a certain medical treatment)
  • Enables you to appoint an attorney for health and personal matters
  • Includes information that health professionals should know, including health conditions, allergies, and religious, spiritual or cultural beliefs that could affect your care

In your AHD, you can give specific instructions about certain medical treatments, such as whether you want to receive life-sustaining measures (e.g. tube feeding or resuscitation) to prolong your life.

You can also outline the quality of life that would be acceptable to you.

The best time to make an advance health directive is now before any urgent health condition arises.

More Than Making a Will

Jointly owned assets

Property you own with another person as a “joint tenant” will not be included in your estate. On your death, your share of that property will pass to the surviving tenant.

However, if you own property together with another person “as tenants in common” then your share or interest in that property will be controlled by your will.

Life insurance

When you set up a life insurance policy you also nominate a beneficiary. Generally the proceeds of a life policy are paid directly to the beneficiary without any need to be included in a will.

If you want your life insurance benefits to be controlled by the terms of your will then you need to nominate your estate as the beneficiary of the policy.

Superannuation

Superannuation is increasingly a major asset for more and more Australians. Given its significance it is critical that superannuation is properly dealt with regardless of whether you are preparing a basic Will, or implementing a complex estate planning strategy.

A strategy that builds wealth in superannuation, but does not consider how it will be passed on is flawed, as is an estate plan that does not specifically consider the issues inherent in superannuation death benefit planning.

Your will does not directly decide where your superannuation proceeds end up. Generally, the trustees of the superannuation fund have discretion to as to who, out of a limited range of people, should receive the death benefit.

You can remove this discretion by making a binding death benefit nomination which requires the fund trustee to pay your superannuation proceeds to your intended beneficiaries or to your estate.

The decision as to whether or not to make a binding nomination is an important element of your estate plan.

Self Managed Superannuation Funds (SMSFs) are the investment vehicle of choice for a huge number of Australians. However, if you are a member of a SMSF your personal will does not govern your SMSF benefits.


CLO Lawyers (in conjunction with your accountant or financial planner) will review your SMSF trust deed and advise on:
  • Binding death nominations
  • How assets in your super fund can be passed on to your loved ones in a tax effective manner
  • How to ensure control of your SMSF is transferred to the appropriate person when you die

Discretionary trusts, unit trusts and companies

Many people don’t understand that assets held in a family company or family trust do not necessarily form part of your estate when you die. This means that simply having a will may not be enough to ensure those assets pass to those you choose.

CLO Lawyers will:
  • Review family trust deeds and advise how to ensure control of the trust (and therefore control of the trust assets) can be transferred to the appropriate person (or persons) when you die.
  • Review your Company Constitution and any Shareholders Agreement to determine how ownership of your company can be appropriately dealt with when you die.
  • Work with you and your business partners to create a Buy/Sell Agreement to enable your interest in the business to be purchased for fair market value.
Your CLO Estate Planning Lawyer will provide appropriate advice in simple plain language and with a focus on respecting your wishes and ensuring a timely finalisation of your estate.

Contesting a Will

Contesting a Will is a difficult choice and often occurs at a very stressful time.

There could be a number of reasons why a Will may be in dispute, such as:
  • You (or a loved one) were left out of the Will
  • You were unfairly or inadequately provided for
  • The administrators/executors of the Will were negligent
  • No Will was made

CLO Lawyers can help you understand your eligibility and the procedures for contesting a Will. We will explain the processes and ensure you understand the provisions of a Will before making a challenge.

Likewise, we can provide expert advice to those needing to defend a contested Will.

Should you find yourself left out of a Will or concerned about the distribution of assets in an estate, contact CLO Lawyers for advice and to explore your options.

Deceased Estates

CLO Lawyers understands the death of a loved family member is an emotional and stressful time, and ensuring a smooth finalisation of the estate can help reduce some of that stress.

Commonly known as Estate Administration, managing deceased estates involves the executor nominated in the Will gathering and assessing the assets of the estate, paying out and finalising any debts, and then distributing the remaining assets to the beneficiaries.

The CLO Estate Planning lawyers are experienced at assisting executors appointed under the Will with probate matters to finalise the estate, as well as managing the estate in cases where there is no Will.

There may also be circumstances (distance, illness, availability etc) when the executor/s of the Will are unable to manage all the estate matters. In such cases the executor/s may wish to appoint CLO Lawyers as the estate managers to finalise and distribute the estate assets in accordance with the Will.

Managing Deceased Estates can be a complex area of law. Every person’s situation is different, as are the options available to minimise the impact on the lives of nominated beneficiaries.

The CLO Lawyers Estate Planning team will provide advice on any of the following estate matters:
  • Funeral arrangements and payments
  • Locating all estate assets
  • Whether a grant of Probate is required
  • Advice when a Will can’t be located, or the deceased did not have a Will
  • Liquidating all estate assets
  • Distributing estate assets
  • Taxation matters

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Appropriately considered and effective estate planning

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Appropriately considered and effective estate planning

Contact Us

Appropriately considered and effective estate planning
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